Commonwealth v. Miller

• Decision Date: 03 October 1973
• Citation: 454 Pa. 67,309 A.2d 705
• Parties: COMMONWEALTH of Pennsylvania v. Charles C. MILLER, Appellant.
• Court: Pennsylvania Supreme Court

309 A.2d 705

454 Pa. 67

COMMONWEALTH of Pennsylvania v. Charles C. MILLER, Appellant.

Supreme Court of Pennsylvania.

October 3, 1973.

Vincent J. Ziccardi, Defender, Jonathon Miller Chief, Appeals Div., Defender Ass'n of Philadelphia, John Packel, Philadelphia, for appellant.

Arlen Spector, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief Appeals Div., Philadelphia, for appellee.

Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

JONES, Chief Justice.

On February 4, 1949, the appellant, Charles C. Miller, pleaded guilty to murder generally, for the shooting death of Arthur James Ruth on the evening of October 16, 1948. The record is silent concerning the circumstances surrounding that plea. After a degree of guilt hearing before a three judge court, appellant was found guilty of first degree murder and was sentenced to life imprisonment. At the time of his plea and throughout the proceedings, Miller was represented by court appointed counsel. No direct appeal was taken from the judgment of sentence.

On July 23 1969, appellant filed a petition under the Post Conviction Hearing Act, ^[1] alleging inter alia that his guilty plea was not knowingly entered because he lacked sufficient mental capacity to make the decisions implicit in a knowing, intelligent and voluntary plea. After an evidentiary hearing, Miller was granted the right to file post trial motions nunc pro tunc, but the PCHA petition was denied in all other respects. The motion for a new trial was argued and was denied, but the PCHA petition was ordered listed for a new evidentiary hearing because the judge presiding at the first hearing died without making any findings. On November 9, 1972, a second hearing was held and the petition was denied.

Because the same issues are raised in each instance, we have permitted appellant to consolidate this appeal from the denial of his PCHA petition and his appeal nunc pro tunc from the denial of post trial motions. We affirm the lower court's determinations.

Appellant has testified that, due to his lack of intelligence, he did not understand the consequences of his guilty plea and that neither his attorneys nor the judge discussed the significance of that plea with him. He contends that the burden of proving his plea was knowing, intelligent and voluntary should rest with the Commonwealth where the record, as here, is silent.

In Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968), we held that henceforth in Pennsylvania an on-the-record examination of the defendant must be conducted to determine if the plea was knowingly, intelligently and voluntarily entered. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) gave that mandate a 'federal constitutional dimension.' See Commonwealth v. Brown, 443 Pa. 21, 25, 275 A.2d 332, 334 (1971). Later we held that in cases questioning guilty pleas based upon silent records and entered after January 3, 1968, ^[2] the burden of proof would shift from the appellant to the Commonwealth. Commonwealth v. McBride, 440 Pa. 81, 83, 269 A.2d 737, 739 (1970); Commonwealth v. Cushine, 433 Pa. 131, 135, 249 A.2d 290, 293 (1969). Appellant requests that we fix the burden of proof of voluntariness in Pre-1968 silent record guilty pleas upon the Commonwealth. He relies on recent decisions involving silent records were Not guilty pleas were entered.

In Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971), this Court determined that the appellant was denied his right to a meaningful appeal since there was no transcript of the proceedings below and the Commonwealth could not construct an equivalent picture of what transpired. Anderson was given retroactive effect in Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972).

Appellant argues that a defendant who enters a guilty plea in a pre-1968 silent record case is in a position similar to that of the defendant in Anderson, and that his appeal with likewise be meaningless without a record of the lower court proceedings. He contends, therefore, that the burden of proving the intelligence and voluntariness of a pre-1968 silent record guilty plea should lie with the Commonwealth, or alternatively that the Commonwealth should construct an equivalent picture of the proceedings below. We disagree.

By adopting appellant's argument we would be applying Boykin retroactively, a position we rejected in Commonwealth v. Godfrey, 434 Pa. 532, 536, 537, 254 A.2d 923, 925 (1969):

'(I)t is staggering to the imagination to contemplate the chaos which would result if Boykin were applied retrospectively. The overwhelming majority of all convictions result from guilty pleas. In a great many of these cases, inadequate on-the-record examinations were conducted. This would mean that countless cases would have to be retried if Boykin were applied retroactively. We can only underscore the statement of Mr. Justice Stewart in Tehan v. United States ex rel. Shott (382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453): 'To require all those States (which still permitted comment on the accused's failure to take the stand when Griffin (Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106) was decided) now to void the conviction of every person who did not testify at his trial would have an impact upon the administration of their criminal law so devastating as to need no elaboration.' (382 U.S. at 419, 86 S.Ct. at 476). We hold, therefore, that Boykin is to be applied only to cases tried after June 2, 1969.'

Our reasoning in West, Cushine, McBride by Anderson and DeSimone. See by Anderson and DeSkmone. See Commonwealth v. Woolcutt, 221 Pa.Super. 384, 387, 293 A.2d 99, 100 (1972). In Anderson and DeSimone, we focused on the acute problems involved in attempting to reconstruct errors which might have occurred during the course of trial without notes of testimony. To require a defendant to base his appeal upon unrecorded trial errors is so great a burden as to virtually preclude a meaningful appeal. Accordingly, this Court saw fit to grant retroactive application. ^[3] We cannot say, however, that placing the burden of proof on appellant in this silent record pre-1968 guilty plea situation would deny him a meaningful appeal. The record indicates that when he acquired counsel, appellant changed his plea from not guilty to guilty. The intelligence and voluntariness of this silent record guilty plea involves questions which are peculiarily within the knowledge of appellant and his counsel, and which can only be reconstructed by them.

From our examination of the record, we also agree with the findings of the hearing court that appellant has failed to carry his burden of proof on the issue of whether his plea was knowingly, intelligently and voluntarily entered.

Appellant contends that he lacked the sufficient mental capacity to make decisions implicit in a knowing, intelligent and voluntary plea according to the rule of Commonwealth v. Harris, 431 Pa. 114, 243 A.2d 408 (1968). He supports his contention as follows: although he was seventeen years old at the time of his plea, he had the mental age of a twelve year old; his I.Q. was 75; he attended a school for retarded children; and he was characterized by one neuropsychiatrist as a 'high grade moron' while another classified him as a 'defective delinquent.' ^[4]

Low intelligence alone, however, is not sufficient to establish an unintelligent guilty plea. See Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971); Commonwealth v. Timmons, 440 Pa. 262, 269 A.2d 677 (1970). The test governing the competency of an accused to plead guilty was set forth by this Court in Commonwealth ex rel. Hilberry v. Maroney, 424 Pa. 493, 495, 227 A.2d 159, 160 (1967):

'(T)he test to be applied in determining the legal sufficiency of his mental capacity to stand trial, or enter a plea at the time involved, is not the M'Naghten 'right or wrong' test, but rather his ability to comprehend his position as one accused of murder and to cooperate with his...